Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

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A weird victory for federalism

Posted Thu, June 28th, 2012 12:56 pm by Randy Barnett

The following contribution to our post-decision symposium on the health care cases is written by Randy E. Barnett. Randy is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts. In 2004, Randy appeared before the U.S. Supreme Court to argue the medical cannabis case of Gonzalez v. Raich after successfully arguing in the Ninth Circuit

Who would have thought that we could win while losing?

In 1995, when the Supreme Court in United States v. Lopez invalidated the Gun Free School Zone Act because it was regulating intrastate noneconomic activity, progressive commentators had two reactions. First, that Lopez represented an outrageous exercise of “conservative judicial activism” and, second, that the Supreme Court would defer to Congress if it merely offered better findings of fact to support its regulations. In 2000, when the Court invalidated the civil cause of action in the Violence Against Women Act, enacted after numerous hearings and supported by copious “findings,” progressive commentators again accused the Court of “activism,” but started to worry that the Court might just be serious about enforcing Article I’s enumerated powers scheme after all.

However, in 2005, when the Court turned away the Commerce Clause challenge to the Controlled Substances Act in Gonzales v. Raich, progressives breathed a sigh of relief. They were right all along. The much-vilified “New Federalism” of the Rehnquist Court was either dead, or merely a symbolic limit on Congressional power, applicable only to small and peripheral legislation.

So when the constitutionality of the Affordable Care Act came under fire by Senate Republicans before its passage, their complaint was dismissed as frivolous. Academic commentators predicted that legal challenges to the law were so baseless, they would trigger Rule 11 sanctions from federal courts. Even after the Court announced an historic 6 hours of oral argument over three days, supporters of the law insisted that the case would be decided by a 8-1 or 7-2 vote. Ironically, the very same academics who condemned the “activism” of Lopez and United States v. Morrisonclung to them as hallowed precedents providing the only limits on the Commerce power.

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.” Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.

In the 1930s & 40s, when Congress was asserting new powers to address the grave distress caused by the Great Depression, the Court relented and allowed it to reach wholly intrastate activity that, in the aggregate had a substantial effect on interstate commerce. This was interpreted by academics to mean that Congress now had a plenary power over anything that affected the national economy, which means any activity at all. The Court would always defer to Congress’s assertion of its Commerce Clause powers.

The New Federalism was attacked precisely because it offered a different vision of the so-called “New Deal Settlement”: although the Court acquiesced to the constitutionality of New Deal-style regulations, when Congress goes beyond this already expansive reading of its powers, the Court will meet any further expansion with skepticism. It will continue to insist on some judicially enforceable limit on federal power. Congress cannot be the sole judge of the scope of its own powers. Today a majority of the Roberts Court reaffirmed this vision.

Academics are sure to react to today’s decision by declaring the New Federalism dead, but they would be wrong to do so. The Founders’ scheme of limited and enumerated powers has survived to fight another day.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]